Professional Documents
Culture Documents
6.1
Introduction
The importance of remedies generally is reflected in the maxim ubi ius ibi
remedium where there is a right, there is a remedy. It is axiomatic that a legal
right is of little, if any, use unless accompanied by an effective remedy.
Remedies should be effective in terms of both procedure and effect, ie the procedure for obtaining the remedy should be clear, simple and speedy and the
remedy once granted should be suitable to protect the legal right from infringement and/or to compensate the victim for such infringement. In the field of
administrative law, remedies can be obtained speedily. In particular, interlocutory remedies are available pending the outcome of the full hearing. However,
the rapid increase in applications for judicial review in recent years has
imposed further pressure on the courts time and delayed the hearing of applications. Once obtained, the remedies are generally effective in protecting from
continuing infringement of legal rights. However, it must again be remembered that the judicial power here is one of review. A decision challenged cannot be overturned on the merits and a fresh decision substituted. The decisionmaker is free to re-take the decision, provided he or she does so within the law.
Judicial review is an inherent power of the High Court. However, as the
principles for the judicial control of executive power have of necessity been
developed by the judges themselves, so the judges had to adopt existing remedies. These remedies took, in part, the form of the so-called prerogative writs,
developed originally to enable the Kings Bench to control the actions of inferior bodies and available only at the suit of the Crown. The courts also adopted private law remedies. It was inevitable that the manipulation of existing
remedies would not prove to be entirely satisfactory to serve new demands. In
particular, the existing remedies proved to be cumbersome in terms of procedure. Each remedy had its own requirements of locus standi. An applicant for a
remedy had to establish that he or she had standing to bring an action, ie a special interest which the courts would regard as sufficient to justify the individual challenging an executive decision. Further, the public law remedies (the
prerogative writs) and the private law remedies had developed independently of each other and had separate procedures for application. As a consequence, a complainant could not combine public and private law remedies in
the same proceedings. Despite procedural reforms of 1977, an applicant for
judicial review of an executive decision can still be confronted with significant
procedural difficulties (see below).
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6.2
History
Pre 1978 remedies in administrative law could be public or private law remedies. In public law, the prerogative remedies of certiorari, prohibition and mandamus (and habeas corpus); in private law, injunction, declaration and damages.
Also, statutory remedies, which might be exclusive, might have been provided. The public law and private law remedies had their own procedures.
Applications for the prerogative remedies were made in the Court of Queens
Bench exercising its inherent supervisory jurisdiction. The private law remedies were available through ordinary civil proceedings in the High Court,
either the Queens Bench or Chancery Divisions. Thus, whilst public law remedies could be combined with each other and private law remedies could also
be so combined, a public law remedy could not be combined with a private law
remedy. If the applicant sought both a public and private law remedy then he
or she had to initiate two sets of proceedings. Each of the remedies also had
individual requirements of standing (see below). Further, interlocutory procedures for discovery of documents or the serving of interrogatories were not
available in the context of the prerogative remedies.
6.3
6.3.1
Injunction
6.3.2
Declaration
The declaration simply declares the legal position of the parties. It is not enforceable per se but, once the legal position has been declared, other remedies may be
available if it proves necessary to enforce the rights declared. The declaration
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Of course, once enacted, the courts would not have been able to challenge the
validity of the European Communities Act. Mr Blackburn was in a Catch 22
position. It can be used to declare governmental action to be unlawful. It is
available against the Crown and so can be used in the context of, for example,
an exercise of the prerogative power (see CCSU v Minister for the Civil Service
(1985)). It is discretionary.
6.3.3
Damages
Damages are most relevant in the context of the tortious and contractual liability of public authorities (see Chapter 12).
6.4
6.4.1
The public law remedies certiorari, prohibition, mandamus and habeas corpus
are granted at the suit of the Crown. Applications are, therefore, brought in the
name of the Crown on behalf of the applicant. As such, they cannot be brought
against the Crown but do lie against ministers and officials. They are all discretionary, except habeas corpus. Originally in the form of writs, in 1938 all
except habeas corpus became orders (s 7 of the Administration of Justice
(Miscellaneous Provisions) Act 1938).
6.4.2
Certiorari/prohibition
Certiorari and prohibition are similar in effect and may be dealt with together.
The essential difference between them is one of timing. Certiorari lies to quash
a decision already made; prohibition to prevent the commission of a future act
which would be ultra vires or in breach of natural justice. The remedies are often
complementary, with certiorari quashing a decision already reached and prohibition controlling the legality of future decisions. They are discretionary.
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6.4.3
Mandamus
6.4.4
Habeas corpus
6.5
As far back as 1949, Lord Denning had commented on the unsuitability of the
prerogative orders (The Hamlyn Lecture, Freedom under the Law) as follows:
Just as the pick and shovel is no longer suitable for the winning of coal, so also
the procedure of mandamus, certiorari, and actions on the case are not suitable for
the winning of freedom in the new age. They must be replaced by new and up
to date machinery, by declarations, injunctions, and actions for negligence ... We
have in our time to deal with changes which are of equal constitutional significance to those which took place 300 years ago. Let us prove ourselves equal to
the challenge.
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6.6
An application for:
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Under rule 8, an interlocutory application (for discovery, interrogatories, crossexamination) in proceedings on an application for judicial review may be
made.
6.7
6.8
Procedure
6.8.1
Leave stage
Application for leave is made ex parte (ie without hearing the other party)
before a single member of the Queens Bench Division. This is intended as a filter, to prevent applications being pursued by applicants who do not have a sufficient interest in the case and to prevent hopeless applications proceeding. It
would seem, therefore, that merits may be considered at this preliminary stage.
In R v Hammersmith and Fulham LBC ex parte People Before Profit Ltd (1983),
People Before Profit, then an unincorporated association, appeared as an objector at a public inquiry into a proposed development. The local planning authority resolved to grant outline planning permission before publication of the
inspectors report which, when published, substantially upheld People Before
Profits objections. The local planning authority rejected the inspectors recommendations and confirmed the grant of permission. People Before Profit then
formed itself into a company and sought leave to apply for judicial review of
the authoritys resolutions. Comyn J held that, although the applicant technically had locus standi and the fact that it had reconstituted itself in a different
form did not deprive it of standing, nevertheless it had no reasonable ground
(merits) for securing the quashing of the authoritys resolutions and leave to
apply for judicial review should be disallowed.
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According to Lord Scarman, the plaintiff must show a prima facie case, or reasonable grounds for believing that there has been a failure of public duty, so
to prevent abuse by busybodies, cranks, and other mischief-makers or vexatious applications.
In R v Secretary of State for the Home Department ex parte Swati (1986), Sir John
Donaldson MR stated that:
... an applicant must show more than that it is not impossible that grounds for
judicial review exist. To say that he must show a prima facie case that such
grounds do in fact exist may be putting it too high, but he must at least show
that it is a real, as opposed to a theoretical, possibility. In other words, he must
have an arguable case.
In any case, the applicant had not exhausted statutory appeal procedures.
An application may be refused if there has been undue delay. If refused, the
ex parte application can be renewed, again before a single judge, and then further renewed before the Court of Appeal. In the case of a hearing inter partes, a
right of appeal lies to the Court of Appeal (but not to the House of Lords). If
leave is granted, the substantive application is made to the Divisional Court.
Neither the requirement of leave nor the time limit applies to an application by
the Attorney General on the Crowns behalf. There is no leave requirement in
cases of statutory judicial review procedures.
The leave requirement is an additional hurdle in public law proceedings. It
has no counterpart in private law actions. Nor can it be dispensed with by
agreement of the parties.
6.8.2
Merits stage
As the title suggests, this involves a full consideration of the merits of the application. However, locus standi can also be reconsidered at this stage (see National
Federation of Self-Employed and Small Businesses (1982) below, pp 181 83).
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6.9
Time limits
Time limits are strict. The nature of public decision-making is often such that
finality is necessary to enable the decision to be acted upon without any further
threat of challenge. As stated by Lord Diplock in O'Reilly v Mackman (1983):
The public interest in good administration requires that public authorities and
third parties should not be kept in suspense as to the legal validity of a decision
the authority has reached in purported exercise of decision-making powers for
any longer period than is absolutely necessary in fairness to the person affected
by the decision.
An application made outside the three month time limit was also rejected in
R v Secretary of State for Health ex parte Furneaux (1994), where a practice of doctors challenged the ministers decision not to grant them permission to provide
pharmaceutical services six months after the refusal. In the meantime, a company had purchased a local pharmacy. The Court of Appeal, reversing the decision of Popplewell J, dismissed the doctors application. Mann LJ stressed the
importance of adhering to the three month time limit where third parties were
concerned.
In contrast, in R v Stratford upon Avon DC ex parte Jackson (1985), the Court
of Appeal allowed an application for leave to apply for judicial review made
out of time. The applicants explanation that the delay included time taken in
obtaining legal aid and trying unsuccessfully to persuade the Secretary of State
for the Environment to intervene was accepted.
On an ex parte application, the judge would be most likely to consider
whether there was good reason to extend the period under rule 4(1). Whether
delay would cause hardship or detriment could arise on a contested application for leave or on the hearing of the substantive application. However, on an
inter partes application for leave, a finding that the application was made
promptly under rule 4 will not prevent the court on the hearing of the substantive application from finding that there has been undue delay under s 31(6)
of the SCA 1981 and exercising its discretion to refuse relief (see R v Swale
Borough Council ex parte RSPB (1991)). The fact that the point of delay is not
taken by the respondent does not preclude the court from exercising its discretion.
Statute may curtail the time limit in any given case. Nor does the fact that
an application has been made within the three month period necessarily mean
that it has been made promptly (see Re Friends of the Earth (1988); R v
Independent Television Commission ex parte TVNI Ltd; R v ITC ex parte TVS
Television Ltd (1991)). In the TNVI case, for example, the applicants sought judicial review after the Commission had confirmed the names of companies to
which it had previously announced it proposed to grant licences. The original
proposal was announced on 16 October and the confirmation made on 4
December. Lord Donaldson MR considered that the applicants had not been
sufficiently prompt, albeit that they had applied within the three month time
limit. After the 4 December confirmation, third parties (the companies granted
licences) would be affected. The applicants had not given clear and prompt
notice.
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167
The Court of Appeal reversed that decision on the basis that the proceedings
were an abuse of the process of the court. The House of Lords upheld the decision of the Court of Appeal, regarding the actions as being blatant attempts to
avoid the protection for the defendants for which RSC Order 53 provides. Both
the Court of Appeal and the House of Lords agreed that the only proper remedy was by way of the application for judicial review. Lord Diplock noted in
particular the following points:
None of the applicants had any remedy in private law.
The disadvantages which previously existed with the prerogative orders
had been removed by the application for judicial review. Interlocutory
applications, discovery, interrogatories and cross-examination were all
now allowed. Damages, declaration and injunction were available in the
same proceedings.
If the application for judicial review was selected when a private law
remedy was appropriate, the court could order the proceedings to
continue as if begun by writ. There was no such converse power to allow
an action begun by writ to continue as if it were an application for judicial
review.
An action begun by writ instead of application for judicial review would
evade protection against groundless, unmeritorious or tardy harassment of
statutory tribunals and decision-making public authorities provided by
RSC Order 53. Also, it would defeat the public policy which underlies
those protections, ie the need for speedy certainty, in the interests of good
administration and of third parties who may be affected, as to whether the
decision challenged is valid.
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Lord Diplock considered this to be a statement of the general rule. He conceded that there may be exceptions, especially where the invalidity of the decision
arises as a collateral issue in a claim for infringement of a right of the plaintiff
arising under private law, or where none of the parties objects to the adoption
of the procedure by writ or originating summons.
The judgments in O'Reilly v Mackman were very much based on the protection of public authorities rather than the advancement of the rights of the citizen. The decision has led to what Wade and Forsyth (Administrative Law, 7th
edn, 1994, Oxford University Press) describe as surgical operations to sever
public from private law.
This issue of the public/private law divide was further considered by the
House of Lords in Cocks v Thanet District Council (1983).
Cocks v Thanet District Council (1983)
This case was decided the same day as O'Reilly v Mackman (1983).
The plaintiff applied to the council for permanent accommodation. The
council provided temporary accommodation. The plaintiff applied for a declaration, mandatory injunction and damages in the county court (moved by consent into the High Court to determine the preliminary issue of whether the
plaintiff should proceed under RSC Order 53) that the council was in breach of
its statutory duty under the Housing (Homeless Persons) Act 1977. Milmo J
held that the plaintiff was entitled to so proceed. On appeal direct to the House
of Lords, it was held unanimously that the plaintiff must proceed by way of
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The exclusivity of the public law remedies was thereby established. O'Reilly v
Mackman and Cocks v Thanet DC were, however, soon to be distinguished in
Davy v Spelthorne Borough Council (1984) and Wandsworth LBC v Winder (1985).
Davy v Spelthorne Borough Council (1984)
Here, the plaintiff owned premises used to produce pre-cast concrete. In 1979,
he agreed with the defendant council that he would not appeal against an
enforcement notice (requiring that such use of the property ceased and the
removal of all buildings and works) provided it was not enforced for three
years from service. The notice was served in 1980 as agreed and the plaintiff
did not appeal. The statutory period for appeal subsequently elapsed. In 1982,
the plaintiff brought an action by writ for:
(a) an injunction to prevent enforcement of the notice;
(b) damages for negligent advice in that he acted upon the councils advice
and did not appeal against the enforcement notice and, consequently, lost
his chance to establish a defence to that notice;
(c) an order that the notice be set aside.
The Court of Appeal struck out (a) and (c) in that they involved a challenge to
the validity of the notice and were matters of public law. However,
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Cocks v Thanet was distinguished in that there the applicant had to challenge
the councils decision (that he was intentionally homeless) as a condition
precedent to enforcing his statutory private law right (to be provided with
accommodation); whereas in Davy v Spelthorne the applicant does not impugn
or wish to overturn the enforcement notice. His whole case on negligence
depends on the fact that he has lost his chance to impugn it.
Lord Wilberforce asserted that, even had the applicant been able to proceed
by way of application for judicial review in his claim for damages (which in the
circumstances he could not), he could still choose the court and the procedure
which suited him best. The onus would be on the defendant to show that the
choice selected was an abuse of process as in O'Reilly where it was possible to
show that the plaintiffs were improperly and flagrantly seeking to evade the
protection which the rule confers upon public authorities.
Similarly, if the plaintiff had waited to be prosecuted for breach of the
notice, he could presumably have argued invalidity of the notice as a defence
(see Winder below).
Wandsworth Borough Council v Winder (1985)
Here, Winder occupied a flat let by the council. He refused to pay increased
rents which he considered to be excessive though he continued to pay an
increased rent to the extent he considered reasonable. In proceedings by the
council for arrears and possession, Winder argued that the rent increases were
ultra vires and void as being unreasonable and counterclaimed for a declaration
to that effect. The council applied to strike out the defence as being an abuse of
the process of the court to challenge the conduct of a public authority other
than by way of application for judicial review. Judge White allowed the councils application. Winder was subsequently refused leave to apply for judicial
review out of time. He then appealed from Judge Whites decision to the Court
of Appeal. The Court of Appeal (by a majority) and the House of Lords (unanimously) refused to strike out his defence as an abuse of the process of the
court.
The issue here was whether any choice of action was available to Winder.
Was he obliged to challenge the decision by the council to increase rents by way
of judicial review and so act within the stipulated time limit for judicial review,
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173
174
Where statute confers what is plainly a private law right, if on the Acts
true construction the right enures only after and in consequence of a
purely public law decision in favour of the claimant, any complaint
directed to the public decision-making must be brought by RSC Order 53
(Cocks v Thanet).
Laws J concluded that the British Steel case itself fell within 3:
... had the plaintiffs been able to establish by judicial review proceedings that
they were entitled to be accorded approval status, and that was duly granted to
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176
178
179
180
181
Lord Wilberforce, therefore, allowed the appeal on the basis that the applicant
had no sufficient interest.
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Lord Diplock, therefore, considered that the Federation had sufficient standing
but that it failed on the merits of the application.
Lord Fraser was of the opinion that the NFSESB did not have standing. He
said:
The new RSC Order 53 ... no doubt had the effect of removing technical and procedural differences between the prerogative orders ... but I do not think it can
have the effect of throwing over all the older law and of leaving the grant of
judicial review in the uncontrolled discretion of the court.
... a direct financial or legal interest is not now required ... there is also general
agreement that a mere busybody does not have a sufficient interest. The difficulty is ... to distinguish between the desire of the busybody to interfere in other
peoples affairs and the interests of the person affected by or having a reasonable concern with the matter to which the application relates ... The correct
approach in such a case is ... to look at the statute under which the duty arises,
and to see whether it gives any express or implied right to persons in the position of the applicant to complain of the alleged unlawful act or omission.
Lord Scarman concluded that the Federation had no standing because they had
not shown that the IRC had failed in their duties, ie interest and merits were
one.
Lord Roskill, like Lords Wilberforce and Fraser, found that the Federation,
merely as a body of taxpayers, had no sufficient interest.
While the House of Lords was of the view that the NFSESB as a group of
taxpayers lacked standing to challenge the tax assessments of other taxpayers,
they did not rule out all possibility that a taxpayer could have sufficient
standing to challenge others assessments, though this would be exceptional.
In R v AG ex parte Imperial Chemical Industries Plc (1987), ICI was held to have
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6.12.2
Pressure groups
184
The application also failed on the merits. The decision of Schiemann J on the
point of locus standi has been criticised as over-restrictive. It has been said of the
decision that: The practical result ... is to create that pariah of modern administrative law, the unreviewable decision (see Clive Lewis, No Standing in the
Theatre: Unreviewable Decision (1990) CLJ 189 at 191). It is especially unsatisfactory that a decision of the executive should be essentially non reviewable
and that such a principle should be acceptable, or at the least accepted, by a
court of law. Indeed, Schiemann J has himself identified the undesirability of
putting certain actions beyond legal challenge in the following terms:
The politically, financially or socially strong can oppress the weak, safe in the
knowledge that the courts cannot interfere. This is undesirable not only because
oppression is undesirable, but also because if the law is openly flouted without
redress in the courts the law is brought into contempt as being a dream without
substance.
Lewis (above) also argues that there are some governmental decisions in which
all members of the public have an interest: Where the decision is one of major
national importance affecting the public generally, then any member of the
public should be able to challenge it.
It also seems somewhat unsatisfactory that a pressure group should be
denied standing because it is formed ad hoc to meet a particular exigency as was
the case in Rose Theatre. Clearly the pressure group would not have been established before discovery of the site. It was hardly an event to be anticipated! (For
an account of locus standi by Sir Konrad Schiemann himself, see (1990) PL
34253.)
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The court therefore considers the effect on the public of providing a remedy to
the applicant, the applicants conduct as being unreasonable (see ex parte Fry
(1954)) or unmeritorious (see Ward v Bradford Corporation (1971)), and even that
the court considers that the penalty was deserved or that the decision-maker
would reach the same decision on reconsideration and so there is no point in
affording an opportunity to challenge (see Cinnamond v British Airports
Authority (1980)).
(See further Sir Thomas Bingham, Should Public Law Remedies be
Discretionary? (1991) PL 6475.)
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SUMMARY OF CHAPTER 6
A legal right is of little, if any, value if there is no effective remedy. In the field
of administrative law remedies can be obtained speedily. Once obtained, remedies are generally effective in protecting from continuing infringements of legal
rights. It must be remembered, however, that the judicial power here is one of
review only so that a challenged decision cannot be overturned on its merits
and a fresh decision substituted. The decision-maker is free to retake the decision providing he or she does so lawfully.
Declaration
A declaration stipulates the legal position of the parties. It is not in itself
enforceable but, once the legal position has been declared, other remedies may
be available to enforce the rights declared.
Damages
Damages are most relevant in the context of the tortious and contractual liability of public authorities.
191
Certiorari/prohibition
These are similar in effect and may be dealt with together. The essential difference is one of timing. Certiorari quashes a decision already made whilst prohibition prevents the commission of a future act which would be ultra vires or in
breach of natural justice/fairness.
Mandamus
This compels the performance of a public duty.
Habeas corpus
This writ is available as of right and requires the imprisoner to justify the applicants imprisonment. It is not discretionary.
Procedure
An application for judicial review is a two-stage procedure:
Leave stage
Application for leave is made ex parte and operates as a filter to prevent
hopeless applications proceeding. An applicant must show that he or she
has an arguable or prima facie case (R v IRC ex parte National Federation of
Self-Employed and Small Businesses (1982)).
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Time limits
Order 53 requires that any application is brought within three months of the
grounds arising. Exceptionally, the court may extend this period. The time limit
is strict with the aim of providing legal certainty.
Limits on the application for judicial review the public/private law dichotomy
In OReilly v Mackman (1983), the House of Lords made clear that, where a matter is one of public law, the Order 53 procedure for judicial review must now be
used. The use of a private law action would, in such circumstances, amount to
an abuse of the process of the court. This principle has not always been strictly
applied (eg Wandsworth Borough Council v Winder (1985)).
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Pressure groups
An application may be made by an association on behalf of its membership (R
v Secretary of State for Social Services ex parte CPAG (1990)). A group formed after
the event, however, will not be allowed standing unless individual members
have standing in their own right (R v Secretary of State for the Environment ex
parte Rose Theatre Trust Co (1990)).
Waiver of standing
Parties to an application cannot agree to waive the requirement of standing.
Relator actions
The absence of standing may be overcome by a relator action. The Attorney
General in his or her capacity as protector of public rights always has standing
ex officio. It is, however, rare for the Attorney General to exercise this power and
it is of less significance since the relaxation of the requirement of standing. In
addition, an applicant may persuade the Attorney General to lend his or her
name to an application.
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